EI INCUMBIT PROBATION QUI DICIT.Proof lies on him who asserts, not on him who denies. The concept is that
one is innocent until proven guilty. Regardless of what the law says about
reasonable doubt, there is an unwritten presumption within the ranks of
the military that if you are charged with sexual assault, then you are
guilty. The stakes are your life! Your military counsel works for the
same military that charged you. Consider that as you choose who represents
you in your potentially life altering case.

Article 134 - Unlawful Entry

Any service member who unlawfully enters the real property of another person,
or the personal property of that person, (a structure used for storage
or as a habitation), can be charged with a violation of Article 134 (paragraph
111) of the UCMJ. The accused can be punished by convening a court martial.

Article 134 does not mention unlawful entry, though there are indirect
references, which also extend to all the other offenses covered under
Article 134. The text of statute in Article 134 says that all neglects
and disorders against the discipline and good order in the armed forces,
all conduct which can bring discredit to the armed forces, and all offenses
and crimes not capital, can be punished through a court martial.

Elements of the offense

The accused had entered the real property or the personal property of another
person. Personal property refers to a structure which is usually used
for storage and habitation.

The accused's entry into the property was unlawful.

In these circumstances, the accused's conduct was against the discipline
and good order in the armed forces or the nature of the act brought discredit
to the armed forces.

Explanation for the offense

Entering a property becomes unlawful, if the accused enters the property
without receiving the consent of a person authorized to give consent or
without authorization from other lawful authority. It is not necessary
to show that the accused had broken into the property or had any such
intent, to prove this offense.

But there must be an
entry before the offense can be effected. The entry of any body part, even a
finger is sufficient. If the accused has inserted a tool or any instrument
into the property, even that can be taken as entry, unless the tool or
the instrument was inserted into the property to facilitate entry or break in.

Both real property and personal property, i.e. a structure normally used
for storage or habitation, are included in property which come under the
ambit of unlawful entry.

Unlawful entry is different from burglary and house breaking. Burglary
and house breaking both have criminal intent, which is lacking in unlawful
entry. So a service member who unlawfully enters a barracks with the intention
of finding a place to sleep for the night, is guilty of unlawful entry
and not burglary or house breaking. Another main difference is the jail
time. An accused who is held guilty of burglary, housebreaking or unlawful
entry can be jailed for 10 years, 5 years and 6 months, respectively.

Maximum punishment for this offense

If a service member is found guilty of unlawful entry at a court martial,
he can be punished with a bad conduct discharge, forfeiture of allowances
and pay and 6 months of confinement.

What could constitute an unlawful entry and what does not:

In U.S Vs Wickersham (CMA 1983) the court said that a fenced-in storage
area could be taken as property subject to unlawful entry.

In U.S Vs Sutton, (CMA 1972) the court said that a vehicle being tracked
is not subject to the offense of unlawful entry.

In U.S Vs Breen (CMA 1966), the court said that unlawful entry does not
include entry into the personal locker of another person.

In U.S Vs Taylor (CMA 1960) the court said that an aircraft which is being
used to transport troops cannot be subject to unlawful entry.

In U.S Vs Gillin (CMA 1958) the court said that automobiles are not covered
under unlawful entry.

In U.S vs Cantu (AFCMR 1982), the court found the accused guilty of unlawful
entry, even when he was serving as a security policeman on duty.

The information on this website is for general information purposes only.
Nothing on this site should be taken as legal advice for any individual
case or situation. This information is not intended to create, and receipt
or viewing does not constitute, an attorney-client relationship.